Annulment of Kenya Presidential election: Pedestal..Judicial activism

The USCJ 's tweet

When the Supreme Court of Kenya annulled the election of President Kenyatta three weeks ago, it was a precedent. It was hailed world-wide as a first in Africa, where a Supreme Court Judge had the temerity to invalidate the election of a sitting President. 

However, the Chief Justice of the US supreme court has dismissed the ruling as Pedestal... judicial Activism

When the President in a fit of anger dismissed the ruling as the “work of thugs promising to fix the Judiciary if re-elected, legal minds in Africa went for his Jugular, “lecturing” him on respect for institutions of governance and especially the judiciary.

This is where the legal minds missed the point.  There was an ominous threat in the President’s use of the word wakora- Kiswahili for dishonest people. That word for any student of linguistics was an indication that the President knew more than he said.

 While the world was cheering the decision of the Court, some in Kenya could not make sense of a ruling that had no definite culprit. The Court exonerated the President of any wrong doing; blaming the mess on the body the managed the election. The voter turnout was large; the voting process was peaceful and calm; the failures of the electoral commission were not criminal in nature said the Court; the numbers each garnered were not in question. So what went wrong? What justified sabotaging the voter’s will?

Three weeks later, things fell apart.  A Petition was filed with the Judicial Service Commission calling for the dismissal of two of the four Judges who annulled the President’s election.  The judges, the petitioner said, were in “improper contact” with the Lawyers and representatives of the Presidential petitioner, during the hearing of the matter before them. 

The two judges were said to have met with the advocates of the petitioner in a residential flat in a city up- market estate and in a hospital. The calls logs of their telephone numbers were also listed as evidence of such inappropriate contact.

A leaked document from the chief strategist of the Opposition chief also admitted as much. The document advises complete silence over the explosive discovery. It also advises ceasing of all communication with the named Judges.

 The detailed ruling of the finding of September 1^st read on Sept.20^th exonerated the IEBC and the President of any wrong doing. But there were two dissenting judges in the Supreme Court ruling and the two minced no words tearing the findings of their four colleagues apart. 

Letter allegedly written by Orengo

The two dissenters, who are also long serving judges of the Supreme Court, found no evidence in the petition to warrant invalidation of the election results. They wondered what evidence was adduced before the court to warrant such a decision. The two dissenting judges depicted their colleagues as a lazy lot that depended on the word of the petitioner to annul a lawful and valid election.

One of the dissenting Judges, Lady Justice Njoki Ndungu, accused her four Colleagues of not even verifying the documents filed in the Court Registry. Her verification, she said, found that all documents presented as forgeries were in fact intact in the Court Registry. She wondered why the Court did not order for the recount of the Presidential votes.

Apart from the two dissenting judges in the Apex Court, The chief Justice of the United States of America, John G Roberts in a tweet dismissed the ruling of the Supreme Court of Kenya as “Pedestal ….Judicial activism,” The judgement, he said was no more than “redeeming their image and seeking international publicity.”

 If this tweet is true, then his is a harsh indictment if there was any.

Kenyan critics had already dismissed the ruling as a “Court assisted Coup” by regime changers in the NGO world.

 Given such harsh indictment by critics and probably peers, it seems Kenya’s Supreme Court will set another precedent in Africa, of a court that executed itself as Lazy and discredited itself.

 Apart from the dissenting Judges, two other judges also played hide- and- seek.  One fell sick for the duration of the hearing leaving the petition to be heard by a six –Judge Bench instead of a full bench of seven Judges.

One of the four judges that made the majority ruling was “out of the country” on the day of the detailed ruling. But whispers have it he bolted out on realizing there was mischief by his two colleagues. A tweet by the two leading dailies indicated that he pulled out because the allegations of improper conduct on the part of his colleagues “were undeniable.”

So where next after this? Analysts say that President Kenyatta will win the election again. And once in Office, there will be a bomb dropped at Kenya’s apex Court. Three of the seven judge bench are headed out, “whether they have security of tenure or not.” The three include; Chief Justice David Maraga, his deputy Philomena Mwilu and Justice Isaac Lenaola. The three who are also new entrants in the Supreme Court, have their credibility dented beyond repair.

 Snippets of the evidence filed to support allegations of improper contact, were so detailed as to suggest the hand of the country’s spy outfit, the National Intelligence Service, NIS. If this is true, then the three judges should start leaving else they shall be hounded out of office.

There are doubts that the CJ and his deputy even wrote their rulings given that they had difficulties reading the rulings. “They stammered like class- two kids learning to read a complete word,” said an observer. Kenyans too have not spared them. A local critic. Prof. Mutahi Ngunyi, said in a tweet that Justice JB Ojwang, one of the dissenting Judges, executed himself with such confidence “he made the CJ look like crass.” Mutahi wondered why “JB is not the Chief Justice in Kenya.”

 That is a view shared by many Kenyans who want the CJ out.

 The re-alignment in the Supreme Court over the Presidential Vote ruling, is a pointer that a major surgery is due in the Apex court. And the old hands in the Court, Justices, Ojwang, Wanjala, Ndungu and Ibrahim appear to have allowed the new comers, Justices, Maraga, Mwilu and Lenaola to roast in their own fat. Apart from the three losing face among Kenyans, they stand a chance of being a case study at how judges should not rule.

  From Africa Development Magazine